WASHINGTON — The U.S. Supreme Court Thursday unanimously struck down a Massachusetts law that creates a 35-foot “buffer zone” restricting pro-life advocates from speaking with people entering abortion facilities.

Alliance Defending Freedom filed the lawsuit McCullen v. Coakley in 2008 with then lead counsel and allied attorney Michael De Primo and has also provided funding for the case since then. De Primo has been litigating the case together with two other allied attorneys, Philip Moran and Mark Rienzi. Rienzi, professor of constitutional law at Catholic University of America’s Columbus School of Law, is currently lead counsel alongside attorneys with the Washington, D.C. firm Wilmer, Cutler, Pickering, Hale & Dorr, LLP.

“Americans have the freedom to talk to whomever they please on public sidewalks,” said Rienzi, who argued before the court on Jan. 14. “That includes peaceful pro-lifers like Eleanor McCullen, who just wants to offer information and help to women who would like it. The Supreme Court has affirmed a critical freedom that has been an essential part of American life since the nation’s founding.”

“The government cannot be allowed to create censorship zones where the First Amendment doesn’t apply,” added De Primo. “This buffer zone censored speakers from engaging in constitutionally protected speech. The Supreme Court rightly struck down the law that created the zone.”

On Nov. 13, 2007, Massachusetts Gov. Deval Patrick signed into law S.B. 1353, which created the buffer zone. The U.S. Supreme Court agreed to hear McCullen v. Coakley in June of last year.

“It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas,” the Supreme Court wrote in its opinion. “Even today, they remain one of the few places where a speaker can be confident that he is not simply preaching to the choir…. In light of the First Amendment’s purpose ‘to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail…,’ this aspect of traditional public fora is a virtue, not a vice.”

“Peaceful pro-life citizens should be able to freely share their message with mothers in vital need without being forced to shout from outside an anti-speech zone,” explained Alliance Defending Freedom Senior Counsel Steven H. Aden. “As the Supreme Court found, Massachusetts had no constitutional basis for creating speech-restricted zones that exist to hinder a particular point of view.”

“Obstructed access and congested sidewalks are problems no matter what caused them. A group of individuals can obstruct clinic access and clog sidewalks just as much when they loiter as when they protest abortion or counsel patients.”

“There is no suggestion in the record that any of the clinics authorize their employees to speak about abortion in the buffer zones.… At the same time, the buffer zones impose serious burdens on petitioners’ speech. At each of the three Planned Parenthood clinics where petitioners attempt to counsel patients, the zones carve out a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics’ entrances and driveways. The zones thereby compromise petitioners’ ability to initiate the close, personal conversations that they view as essential to ‘sidewalk counseling.’”

“McCullen is often reduced to raising her voice at patients from outside the zone—a mode of communication sharply at odds with the compassionate message she wishes to convey.”

“[W]e have observed that ‘one-on-one communication’ is ‘the most effective, fundamental, and perhaps economical avenue of political discourse.’”

“At the outset, we note that the Act is truly exceptional: Respondents and their amici identify no other State with a law that creates fixed buffer zones around abortion clinics.”

“A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency.”

“Given the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say that other approaches have not worked…. In short, the Commonwealth has not shown that it seriously undertook to address the problem with less intrusive tools readily available to it. Nor has it shown that it considered different methods that other jurisdictions have found effective.”

Pronunciation guide: De Primo (dih-PREE’-moh), Rienzi (Ree-EN'-zee)

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.

# # # | Ref. 19883

Summary of the U.S. Supreme Court's decision

Background:

In 2007, Massachusetts amended existing law to make standing on a “public way or sidewalk” within 35 feet of an entrance or driveway to an abortion facility a criminal act.

This law was aimed at those who would gather outside of abortion facilities peacefully offering information to women entering the facility about abortion alternatives and help pursuing those options.

Seventy-seven year old Eleanor McCullen and others were among those offering this information to women. They filed a lawsuit against Massachusetts public officials, arguing that the law both on its face, and as applied to them, was unconstitutional in that it violated basic First Amendment free speech freedoms.

Analysis:

The Supreme Court unanimously held that the law violates the First Amendment.

The court held that the law overly interfered with the freedom of people to speak and interact with each other.

The court also declared that, if the government creates a public speech regulation in response to a listener complaining of alleged “discomfort” due to the speech, that law will be closely examined, with the government having to prove there is a crucial reason for its existence.

Public ways and sidewalks have traditionally been open for peaceful leafleting and conversation and must remain so under Supreme Court precedent.

The government’s ability to regulate speech in these locations has always been very limited, and, when they do impose restrictions, they must create them narrowly and pass certain tests to justify these restrictions.

Here, the anti-speech buffer zone fell short of justifying any kind of interest the government would have in enforcing it because it overly imposed on the free speech rights of individuals on public sidewalks, interfering with their ability to freely and peacefully associate and speak with each other.

Mainly, it deprived people of being able to engage in close, personal conversations and distribution of literature – two forms of expression that are essential to the free exchange of ideas and are fundamental forms of American expression.

Erecting a wide “zone” outside an abortion facility where no one can peacefully discuss abortion with those that are entering is a free speech violation; the court noted that if anyone blocks access to the facility or become violent, the police can address those actions.

In his concurring opinion, Justice Antonin Scalia argued that the law also specifically targeted pro-life speech and that the Court should have addressed the issue in those terms.